§ House again in Committee.
Earl Russell moved Amendment No. 14:
Before Clause 103, insert the following new clause—
( ) Nothing in the immigration rules shall lay down any practice, which would be contrary to the Refugee Convention or the Human Rights Convention and in particular nothing shall lay down any practice which would lead to the refusal or revocation of limited leave to remain where this would be contrary to the Refugee Convention or the Human Rights Convention.
§ The noble Earl said: This is a probing amendment and would have been at whatever time of day it was moved. I have explained its purpose to the Minister. It concerns the remarks made by the Home Secretary in his article in The Times on 7th October about exceptional leave to remain. He said that it should be granted more sparingly.
§ The Home Secretary made no reference to those who already enjoy exceptional leave to remain, which is granted for limited periods and is renewable. Nevertheless, it has created a considerable degree of alarm among those who have exceptional leave to remain and hope to integrate themselves into this country. I believe that such alarm is unnecessary and I hope that the Minister can assure me further to that effect.
For the case that I want to argue I rely on the preparatory articles of the UN convention and the UN convention handbook. I am perfectly well aware that places from which refugees have come that have been unsafe may in the future become safe. I am aware that people may want to return and that some have returned, but in the words of the convention itself, in preparatory Article C(5),
circumstances in connection with which he has been recognized as a refugee have ceased to exist",
and therefore he can,
continue to refuse to avail himself of the protection of the country of his nationality".
However, I am concerned about the proviso in the convention which states:
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality".
That also applies to Article C(6) with which at present we are not concerned.
That is expounded further in the UN handbook which states:
The cessation clauses are negative in character and are exhaustively enumerated. They should therefore be interpreted restrictively, and no other reasons may be adduced by way of analogy to justify the withdrawal of refugee status. Needless to say, if a refugee, for whatever reasons, no longer wishes to be considered a refugee, there will be no call for continuing to grant him refugee status".
Please forgive these quotations but they are to the point.
Article 1C does not deal with the cancellation of refugee status".
That deals with the point.
It is argued in the handbook that it should apply to those who have special protection of any sort and not just to those who are formally recognised as refugees.
The exception, however, reflects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees. It is frequently recognized that a person who—or whose family—has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee".
§ The assurance for which I hoped is that no one will be required to repatriate in those circumstances. If he and his immediate family have been the victims—in the word of the convention—of atrocious persecution, if they wish to return that is a quite different matter. But it is well-recognised that having been the victim of atrocious persecution may produce a sense of trauma which makes return to the scene of the persecution a genuinely unbearable experience.
§ I have one friend who got out of Germany in 1939 at the age of two and a half. She tells me she can still to this day no longer pass through Aachen station without being physically sick.
§ It is that kind of situation I have in mind, where members of the family have been killed, where there has been, say, a home destroyed and burned and people forcibly driven out with members of the family missing, presumed killed. In these circumstances I do not believe that the Home Secretary will require anyone with exceptional leave to remain to leave this country and return to the scene of any such persecution.1050
§ I have given those assurances to people who have asked me for them. I should like the Minister to confirm that I was right to do so. I ask this in hope and in confidence. I beg to move.
§ Lord Hylton
I suggest that the Government would be well advised to accept the amendment because I believe it will save them a considerable number of future legal problems. I am reinforced in that point of view by paragraphs 15 to 18 of the paper from the UNHCR dated 15th October commenting on the Home Secretary's announcement of 7th October.
§ Lord Filkin
I shall go as far as I think it is prudent to go today, but I should like to look carefully at what the noble Earl, Lord Russell, has said when we consider Hansard. If I can go further I shall write to him.
In broad terms, as I am sure the noble Earl is aware, technically there is no need for the amendment. The existing legislation prevents immigration rules being made in breach of the refugee convention. Similarly, the Human Rights Act prevents those rules being in breach of ECHR, since Section 6 would make the setting of rules which were incompatible with the convention rights an unlawful act.
The noble Earl reflected that this was a probing amendment, particularly concerned with situations where traumatised people had, for example, suffered torture in the past and might be removed from the United Kingdom should the general conditions in their country of origin improve.
On the first case where someone has refugee status and has been granted indefinite leave to remain, there are only limited circumstances where they can be removed under immigration powers. I do not think that they particularly relate to these sets of circumstances. Therefore, as the noble Earl implied, it is a question that focuses on a situation where someone has not been given refugee status under the 1951 convention, but has been given humanitarian protection and therefore exceptional leave to remain, which is, as the Committee knows, by definition for limited periods which can be removed.
It is possible that such leave might not be renewed when it has expired, as has been referred to in general terms. Whether or not it was renewed on the specific types of examples would, in the typical words, depend on the individual merits of the case. Where a person has suffered badly in a particular country, that would not of itself mean that he continues to be a refugee, but it would be a factor that would be taken into account when deciding whether it would be appropriate to grant further leave to remain. So much is obvious and what the noble Earl, Lord Russell, would expect, but it would be a factor for consideration. However, perhaps he wants to press me further than that. I cannot give a categorical assurance that in all circumstances and all types of cases people would never be removed. On reflection, I cannot go that far—which does not mean that I will not be able to go further.
1051 What I can say is that if people were at the end of their period of leave, it would be open to them to make the case in their application for further leave and to bring to the department's attention the history of their trauma and any relevant medical evidence that pointed to it. Without being categoric, that would automatically protect them; I suspect that that would be given most serious consideration. One would have to be aware of the convention's provisions and the protections that it implies and have good reason not to be seen to be flying in its face.
I do not want to go further than that tonight—not because I am being churlish but because I should like to consider the matter in detail and write to the noble Earl more precisely about the position, if that would be helpful. With that, I hope that the noble Earl, Lord Russell, will bear with me for now—no doubt reserving his right to return to the matter later.
§ Earl Russell
I am most grateful for that answer. I understand that, in the circumstances, it was all that the Minister could give me. "Never" is, of course, a short time in politics. I am aware that people may want to take into account many other considerations. But, assuming no other factor creating any argument against the continuation of leave to remain and model conduct in the intervening time, I hope that those concerned could approach a case with at least a reasonable degree of confidence. I shall await the Minister's letter—his offer is much appreciated—with the same confidence in mind. I thank him for his care and trouble and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 103 agreed to.
§ Clause 104 [Regulations, &c.]
§ Lord Filkin moved Amendment No. 15:
Page 57, line 9, at end insert—
( ) An order under section 88(2C) or 107(9)—
( ) An order under section 88(2D) or 107(10)—
§ On Question, amendment agreed to.
§ Clause 104, as amended, agreed to.
§ Clause 105 [Interpretation]:
§ Lord Filkin moved Amendment No. 16:
Page 57, line 17, at end insert—
asylum claim" means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention,
§ The noble Lord said: In moving the amendment, I shall speak also to Amendment No. 17. The two government amendments define the terms 'asylum claim" and "human rights claim" for the purposes of Part 5. The definitions adopt the standard references to the UK's obligations under the Refugee Convention and adherence to Section 6 of the Human Rights Act 1998 on acting compatibly with the European Convention on Human Rights. They also require the asylum or human rights claim to be made to the Secretary of State at a place designated by him. That is the requirement that the opposition amendments seek to debase.
§ The purpose of that requirement is simply to ensure that claims are made in person, so that proper contact is established between the Immigration and Nationality Directorate and the applicant and that present difficulties with postal claims are avoided. There are several examples of such difficulties, such as where a claim is made by post with no details of how to contact the claimant, which may lead to the ridiculous situation of an unresolved claim lying around indefinitely, or where we have a return address but the applicant never responds to our requests to attend a screening interview, with the result that we end up refusing claims of people we have never even seen and who may not even exist. Again, that is unsatisfactory.
§ I assure the Committee that sufficient sites will be designated to make it easy for a person to lodge their claim in person. There is the further issue that lodging the claim in person establishes the increased contact that is one of the underlying objectives of the Bill.
§ There is no intention to make it difficult for a person who wishes to make an asylum or human rights claim—far from it. We plan to have, by March 2003, a substantial number of screening sites in operation for in-country applicants. I shall rattle through the list: Croydon and other parts of London, Dover and various places in the south and south-west—for example, Portsmouth, Southampton, Poole, Bristol and Plymouth. I am not sure whether it will be all of those or whether those are illustrations; I will need to check. There will also be sites at Cardiff, Stansted and in Norfolk by the summer/autumn 2003; Birmingham and Northampton by the summer/autumn 2003; various sites in the North East—for example Sheffield, Leeds, Hull, Humberside, the Tees and the Tyne—Manchester, Liverpool, Glasgow, Edinburgh and Belfast.
§ I hope that, given that coverage, the Committee will accept that it is not unreasonable to expect someone to attend in person.
§ 9.30 p.m.
Lord Dholakia moved, as an amendment to Amendment No. 16, Amendment No. 16A:
Line 2, leave out "at a place designated by the Secretary of State
§ The noble Lord said: I am grateful to the Minister. He has answered several points that I was going to raise. However, there are still one or two points about which, I hope, he will give some further information.
We accept that the amendments are fairly technical. However, we want to probe the Government on the effect of demanding that a claim for asylum be made,
at a place designated by the Secretary of State".
The Minister listed the places that are to be designated. We will examine the list, but it would be helpful to know how people will get to those places. Will funds be provided to allow them to travel there? What will happen to a person who asserts a need for protection at a port, including airside, or when picked up, for example, at the side of a motorway, having emerged from a lorry? Will such people be treated as asylum seekers between the moment that they assert a need for international protection and the time that they reach the designated place?
§ A person ought to be treated as having made an asylum or human rights claim in the UK wherever or however he or she makes it. In particular, those who express a fear of persecution must be treated as asylum claimants and should not face a further procedural hurdle, set up purely for the administrative convenience of the Home Office. The UK's obligations exist irrespective of how or when a person makes his or her asylum claim. No legal rights, including appeal rights, should be jeopardised on account of how or where an asylum claim is made. I beg to move.
§ Lord Filkin
I will have a shot at some of the issues, but we will need a letter for others.
How will people get there? In general, it will be by public transport. I suspect that the noble Lord was probing to find out who would pay for such public transport. I will come back to him on that. Someone who registers for asylum at a port will be able to make an application at a port. I must leave it at that for now, but I shall come back to the noble Lord.
§ Lord Dholakia
I am grateful to the Minister. In the light of what he has said, I look forward to his reply and beg leave to withdraw the amendment.
§ Amendment to Amendment No.16, by leave, withdrawn.
§ On Question, Amendment No. 16 agreed to.
§ Lord Filkin moved Amendment No. 17:
Page 57, line 19, at end insert—
human rights claim" means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention) as being incompatible with his Convention rights,
§ [Amendment No. 17A, as an amendment to Amendment No. 17, not moved.]1054
§ On Question, Amendment No. 17 agreed to.
§ Clause 105, as amended, agreed to.
§ Clause 106 agreed to.
§ Clause 107 [Appeal from within United Kingdom: unfounded human rights or asylum claim: transitional provision]:
§ Lord Filkin moved Amendment No. 18:
Page 58, line 3, leave out subsection (1) and insert—
2 "(1) A person may not bring an appeal under section 65 or 69 of the Immigration and Asylum Act 1999 (c. 33) (human rights and asylum) while in the United Kingdom if—
5 (a) the Secretary of State certifies that the appeal relates to a human rights claim or an asylum claim which is clearly unfounded, and
(b) the person does not have another right of appeal while in the United Kingdom under Part IV of that Act.
§ [Amendments Nos. 18A and 18B, as amendments to Amendment No. 18, not moved.]
§ On Question, Amendment No.18 agreed to.
§ Lord Filkin moved Amendments Nos. 19 to 21:
§ Page 58, line 8, leave out "who is" and insert "while"
§ Page 58, line 15, leave out subsection (3).
§ Page 58, line 19, leave out "who is" and insert "while"
§ On Question, amendments agreed to.
§ Lord Filkin moved Amendment No. 22:
Page 58, line 36, at end insert—
(7) If the Secretary of State is satisfied that a person who makes a human rights claim or an asylum claim is entitled to reside in a State listed in subsection (8), he shall issue a certificate under subsection (1) unless satisfied that the claim is not clearly unfounded.
(8) Those States are—
(9) The Secretary of State may by order add a State, or part of a State, to the list in subsection (8) if satisfied that—
(10) The Secretary of State may by order remove from the list in subsection (8) a State or part added under subsection (9).
§ [Amendments Nos. 22A to 22L, as amendments to Amendment No. 22, not moved.]1055
§ On Question, Amendment No. 22 agreed to.
§ Clause 107, as amended, agreed to.
§ Clause 108 agreed to.
Lord Bassam of Brighton moved Amendment No. 23:
After Clause 108, insert the following new clause—
"NORTHERN IRELAND APPEALS: LEGAL AID
(1) In Part 1 of Schedule 1 to the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)) (proceedings for which legal aid may be given under Part II of that Order) the following shall be inserted after paragraph 6—
6A. Proceedings before an adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002, the Immigration Appeal Tribunal or the Special Immigration Appeals Commission.
(2) The amendment made by subsection (1) is without prejudice to the power to make regulations under Article 10(2) of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 amending or revoking the provision inserted by that subsection.
§ The noble Lord said: The amendment is simple and straightforward. It seeks to bring proceedings before the Special Immigration Appeals Commission, the Immigration Appeal Tribunal and the immigration adjudicators, the Immigration Appellate Authority, within the scope of legal aid in Northern Ireland. I am sure that we can all agree to the amendment. I beg to move.
§ Lord Hylton
Can the Minister confirm that appeals by people who have reached Northern Ireland will be heard there and that they will not be compelled to travel to Liverpool or somewhere else in England to have their appeals heard?
§ Lord Bassam of Brighton
As far as we are aware, to date there has never been an SIAC case where the appellant has been based in Northern Ireland. Were it to be the case we would want to be certain that legal aid was available. It is our intention that funding for such issues will be provided by the Home Office through the law centre for Northern Ireland. As I understand it, we do not have a centre in Northern Ireland and so it is likely that appeals will be held away from there. However, we shall ensure that all the necessary facilities are provided as close as possible to where the applicant is based. But such a case is unlikely to arise. We have not yet had a case in Northern Ireland which would fall to be covered by the provision.
§ On Question, amendment agreed to.
§ Clauses 145 to 151 agreed to.
§ Schedule 3 [Withholding and Withdrawal of Support]:
§ Lord Filkin moved Amendment No. 24:
Page 92, line 38, at end insert—
( ) section 29(1)(b) of the Housing (Scotland) Act 1987 (c. 26) (interim duty to accommodate in case of apparent priority need where review of a local authority decision has been requested),
§ The noble Lord said: We spoke earlier about benefit shopping. This measure will further assist local authorities by making their obligations clear when dealing with applications for housing assistance from persons covered by the benefit shopping policy in Schedule 3. There has been a recent case in Bristol where a Dutch national of Somali origin secured an injunction from the High Court requiring Bristol City Council to accommodate her under the homeless legislation while the council carried out a review of its decision that she was ineligible for homelessness assistance.
§ Amendment No. 27 seeks to introduce measures to remove the discretionary power given to local housing authorities to accommodate those persons covered by the benefit shopping policy pending a review or appeal against a decision that they are ineligible for homelessness assistance.
§ The applicant asked Bristol City Council to review its decision. The council declined to exercise its power to accommodate her pending that review. She then applied for judicial review of the decision not to accommodate pending the review and was granted an injunction requiring the council to exercise its discretionary power to accommodate.
§ This is a recent development. However, when the benefit shopping measures in the Bill come into force, we are concerned that this provision might be used more frequently and the courts would require local housing authorities to provide accommodation. It is also the case that an amendment to the Housing Act 1996 inserted by the Homelessness Act 2002 provides a new right of appeal to the county court against a decision by the local housing authority not to exercise its power to accommodate pending an appeal to the county court on the substantive homelessness decision.
§ Local authority resources must be preserved for those in most need. These measures apply only to those classes of person covered by the benefit shopping policy and those persons who have support available elsewhere, are here unlawfully, or are failed asylum seekers who can leave but refuse to do so.
§ The LGA has agreed that the amendment will deal with this particular situation and is not opposed to it. We are taking this step to protect local authorities and will be meeting with the LGA to ensure smooth implementation as part of an on-going consultation programme.
§ Amendments Nos. 25 and 26 are minor and technical. They ensure that provisions in Scottish law mirror those of England and Wales.
§ Amendments Nos. 28 and 29 are, again, essentially minor and technical. They will allow the benefit shopping measures to be used flexibly.
§ Without going into more detail, I commend the amendments to the Committee. I beg to move.
§ On Question, amendment agreed to.
§ Lord Filkin moved Amendments Nos. 25 to 29:
§ Page 93, line 1, leave out "section 29" and insert "sections 22. 29 and 30"1057
§ Page 93, line 1, leave out "(after-care)" and insert "(provisions analogous to those mentioned in paragraph (f))"
§ Page 96, line 20, at end insert "or only for specified purposes"
§ Page 96, line 21, leave out "or circumstances" and insert ", circumstances or purposes"
§ On Question, amendments agreed to.
§ Schedule 3, as amended, agreed to.
§ Schedules 4 to 6 agreed to.
§ Schedule 7 [Immigration and Asylum Appeals: Transitional Provision]:
Baroness Scotland of Asthal moved Amendments Nos. 30 and 31:
Page 101, line 26, at end insert—
§ In Part III of Schedule 1 to the House of Commons Disqualification Act 1975 (disqualifying offices) for "Adjudicator appointed for the purposes of the Immigration and Asylum Act 1999." substitute "Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002.".
§ In Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (disqualifying offices) for "Adjudicator appointed for the purposes of the Immigration and Asylum Act 1999." substitute "Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002."."
§ Page 102, line 26, at end insert—
§ In Schedule 11 to the Courts and Legal Services Act 1990 (judges &c. barred from legal practice) for "Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)" substitute "Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002".
- (a) in sub-paragraph (a), for "section 57 of the Immigration and Asylum Act 1999" substitute "section 75 of the Nationality, Immigration and Asylum Act 2002", and
- (b) in sub-paragraph (b), for "section 56 of that Act" substitute "section 94 of that Act".
§ In Part II of Schedule 1 to the Judicial Pensions and Retirement Act 1993 (offices which may be qualifying judicial offices) for "Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)" substitute "Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002".1058
§ In Schedule 5 to that Act (retirement provisions: the relevant offices) for "Adjudicator for the purposes of the Immigration and Asylum Act 1999 (other than Asylum Support Adjudicator)" substitute "Adjudicator appointed for the purposes of Part 5 of the Nationality, Immigration and Asylum Act 2002"."
§ The noble Baroness said: These amendments are technical and consequential. They update references in five other Acts of Parliament, which refer to adjudicators appointed under the Immigration and Asylum Act 1999, to make clear that these references should now refer to adjudicators appointed under the Nationality, Immigration and Asylum Act 2002. I beg to move.
§ On Question, amendments agreed to.
§ Lord Filkin moved Amendment No. 32:
Page 104, line 12, at end insert—
The following shall be substituted for paragraph 4 of Schedule 2 to the Proceeds of Crime Act 2002 (lifestyle offences: England and Wales: people trafficking)—
4 (1) An offence under section 25, 25A or 25B of the Immigration Act 1971 (c. 77) (assisting unlawful immigration etc.).
(2) An offence under section 130 of the Nationality, Immigration and Asylum Act 2002 (traffic in prostitution).
§ In paragraph 4 of Schedule 4 to that Act (lifestyle offences: Scotland: people trafficking) for "section 25(1) of the Immigration Act 1971 (c. 77) (assisting illegal entry etc.)" there shall be substituted "section 25, 25A or 25B of the Immigration Act 1971 (c. 77) (assisting unlawful immigration etc.)".
The following shall be substituted for paragraph 4 of Schedule 5 to that Act (lifestyle offences: Northern Ireland: people trafficking)—
4(1) An offence under section 25, 25A or 25B of the Immigration Act 1971 (c. 77) (assisting unlawful immigration etc.).
(2) An offence under section 130 of the Nationality, Immigration and Asylum Act 2002 (traffic in prostitution)."
§ The noble Lord said: This is a consequential amendment flowing from Clause 132. The majority of people who have entered the United Kingdom illegally have been assisted in their entry by organised criminals acting for gain. The amendment replaces the present reference in the Proceeds of Crime Act to an offence under Section 25(1) of the Immigration Act 1971 with references to the new sections inserted by Clause 132 of this Bill and to the new offence under Clause 134. I hope that that is clear. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 7, as amended, agreed to.1059
§ Schedule 9 [Repeals]:
§ Lord Filkin moved Amendment No. 33:
Page 115, line 36, leave out "paragraph 2" and insert "paragraphs 2 and 6"
§ On Question, amendment agreed to.
§ Schedule 9, as amended, agreed to.1060
§ House resumed: Bill reported with amendments.